Mrs. Ebun Adedipe V. Afolabi Theophilus (2005)

LawGlobal-Hub Lead Judgment Report

M.L. GARBA, J.C.A.

By way of an originating summons, the appellant sought an order from the Lagos High Court to recover possession of the parcel of land at 23 George Street, Shomolu, Lagos.

When served with the summons which as required by law, was supported by an affidavit and later on further affidavit, the respondent filed a counter affidavit. After a consideration of the affidavit evidence along with the addresses of counsel, the lower court in a ruling delivered on the 18th February, 2002, concluded thus, inter alia:-

” … It is the humble view of this court that the matter before this Court cannot be dealt with without looking into the issues of the contending titles of the parties. In the circumstances, it is my humble view that this matter can be more conveniently dealt with on its merits by taking evidence VIVA VOCE. Accordingly, I make orders for filing of pleadings… The plaintiff’s originating summons dated 8th June, 2001 is hereby struck out.”

Being very dissatisfied with the above decision by the lower court, the appellant filed a Notice of Appeal against it on the 6th March, 2002, containing a single ground of appeal. The Notice of Appeal was amended by order of the lower Court made on 20th May, 2002, as contained on p. 77 of the record of appeal. The amended Notice of Appeal was dated the 7th May, 2002, containing two (2) grounds of appeal as follows:

“Grounds of Appeal

Ground One

The learned trial judge erred in law, when he ordered that pleadings should be filed on the basis of what the court referred to as the contending titles of the parties.

Particulars of Error

(1) The plaintiff is deemed to have been restored into possession following the order of His Lordship, Manuwa J. dated 29/9/2000, which set aside the warrant of possession executed in respect of the property.

(2) Before the defendant/respondent can validly claim right, title, interest to the land in which the plaintiff is validly in possession, his predecessors in title ought to have established a claim against the plaintiff through a court proceeding.

(3) There is no valid instrument of transfer of interest in the land to the respondent.

(4) Having regard to all the circumstances of the case, the right of the plaintiff to the land is inviolable.

(5) There is no legally valid dispute as to the facts before the court that should have made the need for the court to order pleadings to arise.